The Heart of the Matter Blog

A Jenner & Block team secured an important appellate win in a long-running pro bono Freedom of Information Act (FOIA) matter.

In August 2012, investigative journalist Mattathias Schwartz filed a FOIA request with the US Drug Enforcement Administration (DEA), seeking video footage of a May 2012 DEA operation in rural Honduras that resulted in the shooting deaths of four Honduran civilians. The DEA refused to release the video, claiming it was exempt from disclosure under FOIA because it would reveal law enforcement “techniques or procedures.”

In September 2013, a firm team filed suit against the DEA on behalf of Mr. Schwartz, and in January 2016 – after multiple rounds of briefing, two rounds of oral argument, numerous additional submissions, and in camera review of the video – Judge Carol Bagley Amon of the Eastern District of New York granted summary judgment in Mr. Schwartz’s favor and directed the DEA to release the video to him. The DEA appealed.

On April 6, 2017, Associate Carl N. Wedoff presented oral argument to the Second Circuit, and on June 6, the appellate court affirmed the district court. It concluded that the alleged law enforcement techniques and procedures DEA relied on to withhold the video (i) are disclosed in publicly available materials, (ii) are not disclosed by the video, or (iii) are not law enforcement techniques or procedures at all, but rather are only the circumstances in which publicly known techniques and procedures were employed.

In addition to Mr. Wedoff, the team consisted of Partner Brian J. Fischer, Associate Brittany R. Lamb and Summer Associate Alexandra Bursak, with help from Law Clerk Nicole Taykhman, Paralegal Amanda E. Factor and New York Office Managing Clerk Na’eem A. Conway.

Jason Wulf was a well-known graffiti artist in Queens, NY who was killed at the age of 42, electrocuted by the third rail in a Brooklyn subway station. Jason’s death garnered significant media attention. Others in the graffiti community took advantage of that media attention and began selling copies of his graffiti tags and other artwork to make money, without the permission of the Wulf family. This was particularly upsetting for the Wulf family, who did not even have enough money to purchase a headstone for Jason. That is when Jason’s sister, Christina, approached Volunteer Lawyers for the Arts (VLA), an organization that connects struggling artists with law firms for pro bono legal representation. Christina was seeking assistance in obtaining copyright protection for Jason’s works. VLA connected Christina to Jenner & Block, and the firm represented her in obtaining copyright registrations for Jason’s artwork.

First, the team had to navigate New York Surrogate’s Court and close out Jason’s estate. Next, they facilitated the transfer of the copyrights in Jason’s works from Jason’s parents to Christina, which was accomplished through informal mediation between Christina and her parents. Once Christina obtained the right to register Jason’s copyrights, the team selected the right pieces from Jason’s extensive collection of work for which to seek registration – they needed pieces that were broad enough to give Christina the most protection, but artistic enough to be copyrightable. The area of graffiti as copyrightable artwork is a “hot” area in intellectual property law, and the team dug deep into recent case law and academic literature when choosing the pieces.

On April 29, 2015, Christina received copyright registrations for three of Jason’s pieces of artwork, giving her piece of mind, as well as great pride around her brother’s legacy. The team consisted of Partner Andrew H. Bart, Associate Alison I. Stein, and former associate Ava McAlpin. Partner Steven R. Englund provided invaluable assistance as well.